Wednesday, April 28, 2010

Have you read the Arizona Immigration enforcement bill?

There has been a lot of information out there against the new Arizona Law. The issue against the new immigration law is whether it's constitutional, discriminatory and racist. Here is the SB1070 final version that got passed and signed into law. Does the law usurp the Supremacy Clause of the Constitution? Does the law call out a specific group? Does the law, which requires local agencies to comply with federal immigration law, violate anyone's 4th Amendment rights? Let's take a look at the bill to determine (http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2r/summary/s.1070pshs_housechanges.doc.htm):

As passed the Senate, S.B. 1070 requires officials and agencies of the state and political subdivisions to assist in the enforcement of federal immigration laws and establishes crimes related to illegal immigration.  Specifies requirements for employers who assert an entrapment defense for intentionally or knowingly employing an unauthorized alien.

 
 

The House of Representatives adopted a same-subject strike everything amendment that does the following:

 
 

Purpose

 
 

            Requires officials and agencies of the state and political subdivisions to fully comply with and assist in the enforcement of federal immigration laws.  Establishes crimes involving failure to complete an alien registration document, hiring or soliciting work under specified circumstances, and transporting or harboring unlawful aliens, and their respective penalties.  Specifies requirements for employers who assert an entrapment defense for intentionally or knowingly employing an unauthorized alien.

 
 

Background

 
 

Federal law provides that any alien who 1) enters or attempts to enter the U.S. at any time or place other than as designated by immigration officers, 2) eludes examination by immigration officers, or 3) attempts to enter or obtains entry to the U.S. by a willfully false or misleading representation is guilty of improper entry by an alien.  For the first commission of the offense, the person is fined, imprisoned up to six months, or both, and for a subsequent offense, is fined, imprisoned up to 2 years, or both (8 U.S.C. § 1325).

 
 

The U.S. Immigration and Customs Enforcement (ICE) is the primary authority for enforcing immigration laws.  ICE was created in March 2003 as an investigative branch of the Department of Homeland Security.  ICE was the result of combining the Immigration and Naturalization Service and the U.S. Customs Service.

 
 

In 2007, Arizona enacted the Legal Arizona Workers Act (LAWA), prohibiting an employer from intentionally or knowingly employing an unauthorized alien and establishing penalties for employers in violation.  The U.S. Citizenship and Immigration Services office administers the Systematic Alien Verification for Entitlements (SAVE) Program.  The SAVE Program, together with the Social Security Administration (SSA), administers E-Verify, which allows employers to electronically confirm the employment eligibility of all newly hired employees.  LAWA requires all Arizona employers to use E-Verify to verify the employment eligibility of new hires.  Proof of verifying the employment authorization of an employee through E-Verify creates a rebuttable presumption that an employer did not intentionally or knowingly employ an unauthorized alien.

 
 

The fiscal impact is unknown; however, there may be additional costs associated with criminal prosecution and detention of persons who are accused and convicted of the crimes established in this legislation.  Additionally, the addition of new fines associated with this measure may also have an impact.

 
 

Provisions

Enforcement

 
 

1.      Requires a reasonable attempt to be made, when practicable, to determine the immigration status of a person:

a)      for any lawful contact made by a law enforcement official or agency of the state or political subdivision and

b)      if reasonable suspicion exists that the person is an unlawfully present alien.

 
 

2.      Adds an exception to the requirement for law enforcement to make a reasonable attempt to determine a person's immigration status if the determination may hinder or obstruct an investigation.

 
 

3.      Requires anyone who is arrested to have the person's immigration status determined before the person is released.

 
 

4.      Requires the person's immigration status to be verified with the federal government pursuant to federal law.

 
 

5.      Prohibits a law enforcement official or agency of the state or a county, city, town or other political subdivision of the state (political subdivision) from solely considering race, color or national origin in implementing the requirement for determining and verifying immigration status, except to the extent permitted by the U.S. or Arizona Constitutions.

 
 

6.      Specifies that a person is presumed to not be an unlawfully present alien if the person provides any of the following to a law enforcement officer or agency:

a)      a valid Arizona driver license or nonoperating identification license;

b)      a valid tribal enrollment card or other form of tribal identification; or

c)      a valid U.S. federal, state or local government issued identification if the entity requires proof of legal presence in the U.S. before issuance.

 
 

7.      Specifies that this section and the act do not and shall not be construed to implement, authorize or establish the REAL ID Act of 2005, including the use of a radio frequency identification chip.

 
 

8.      Requires ICE or Customs and Border Protection (CBP) to be immediately notified on discharge from imprisonment or assessment of any monetary obligation that is imposed on an unlawfully present alien who is convicted of a violation of state or local law.

 
 

9.      Permits a law enforcement agency to transport an alien who the agency has received verification is unlawfully present in the U.S. and who is in the agency's custody to:

a)      a federal facility in this state or

b)      any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency.

 
 

10.  Requires a law enforcement agency to obtain judicial authorization before securely transporting an unlawfully present alien to a point of transfer that is outside of Arizona

 
 

11.  Prohibits officials or agencies of the state and political subdivisions from being prevented or restricted from sending, receiving or maintaining an individual's immigration status information or exchanging that information with any other governmental entity for the following official purposes:

a)      determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state;

b)      verifying any claim of residence or domicile if that verification is required under state law or a judicial order issued pursuant to a civil or criminal proceeding in the state;

c)      pursuant to federal law; or

d)     if the person is an alien, determining whether the person is in compliance with federal alien registration laws.

 
 

12.  Disallows officials or agencies of the state or political subdivisions from adopting or implementing policies that limit immigration enforcement to less than the full extent permitted by federal law, and allows a legal Arizona resident to bring an action in superior court to challenge an official or agency that does so.

 
 

13.  Requires the court, if there is a judicial finding that an entity has committed a violation, to order the entity to pay a civil penalty of at least $1,000 and not more than $5,000 for each day that the policy has remained in effect after the filing of the action.

 
 

14.  Requires the court to collect and remit the civil penalty to the State Treasurer for deposit in the Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.

 
 

15.  Permits the court to award court costs and reasonable attorney fees to any person or any official or agency of the state or a political subdivision that prevails by an adjudication on the merits in a proceeding brought to challenge immigration policies or practices.

 
 

16.  Specifies that law enforcement officers are indemnified by their agencies against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit or proceeding brought pursuant to this statute to which the officer may be a party by reason of the officer being or having been a member of the law enforcement agency, except in relation to matters in which the officer is adjudged to have acted in bad faith.

 
 

17.  Requires this section to be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of U.S. citizens.

 
 

18.  Allows a peace officer, without a warrant, to arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the U.S.

Willful Failure to Register

 
 

19.  Adds, as a state offense in addition to any violation of federal law, willful failure to complete or carry an alien registration document if the person is in violation of a related federal law.

 
 

20.  Permits, in the enforcement of this section, an alien's immigration status to be determined by:

a)      a law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status; or

b)      ICE or CBP pursuant to federal law.

 
 

21.  Specifies that a person sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basis except:

a)      if temporary removal is authorized by the Arizona Department of Corrections related to inmate employment with the prison, cooperation with voluntary medical research, medical treatment, participation in certain community action activities or compassionate leave; or

b)      if the sentence imposed by the court has been served or the person is eligible for release pursuant to earned release credits.

 
 

22.  Directs the person to pay jail costs and an additional assessment of at least $500 for the first violation or at least $1,000 for subsequent offenses.

 
 

23.  Requires the court to collect and remit the assessments to the Department of Public Safety (DPS) for a special GIITEM subaccount, which DPS must establish. 

 
 

24.  Subjects monies in the subaccount to legislative appropriation for distribution for gang and immigration enforcement and county jail reimbursement costs relating to illegal immigration.

 
 

25.  Specifies that the offense does not apply to a person who maintains authorization from the federal government to remain in the U.S.

 
 

26.  Specifies that any record related to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record.

 
 

27.  Classifies the violation as follows:

a)      a class 3 felony if the person commits the violation while in possession of a dangerous drug, precursor chemicals used in the manufacturing of methamphetamine, a deadly weapon or dangerous instrument or property that is used for committing an act of terrorism;

b)      a class 4 felony for a second or subsequent offense or if the person, within 60 months before the violation, accepted a voluntary removal from the U.S. or has been deported;

c)      a class 1 misdemeanor in all other cases.

 
 

Unlawful Stopping and Solicitation of Work

 
 

28.  Specifies that it is unlawful, if a motor vehicle is stopped on a street, roadway or highway and blocks or impedes the normal movement of traffic:

a)      for a motor vehicle occupant to attempt to hire or hire and pick up passengers for work at a different location;

b)      for a person to enter the motor vehicle in order to be hired by a motor vehicle occupant and to be transported to work at a different location.

 
 

29.  Stipulates that it is unlawful for a person who is unlawfully present in the U.S. and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in Arizona.

 
 

30.  Classifies these offenses as class 1 misdemeanors.

 
 

31.  Defines solicit and unauthorized alien.

 
 

Unlawful Transporting or Harboring

 
 

32.  Specifies that it is unlawful for a person who is in violation of a criminal offense to do or attempt to do the following if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the U.S. in violation of law:

a)      transport or move an alien in Arizona, in furtherance of the illegal presence of the alien in the U.S., in a means of transportation;

b)      conceal, harbor or shield an alien from detection in any place in Arizona, including any building or means of transportation.

 
 

33.  Stipulates it is unlawful to encourage or induce an alien to come to or reside in Arizona if a person who is in violation of another criminal offense knows or recklessly disregards the fact that such coming to, entering or residing in this state is or will be in violation of law.

 
 

34.  Subjects a means of transportation used in the commission of a violation to mandatory vehicle immobilization or impoundment.

 
 

35.  Exempts the following persons from these offenses:

a)      a Child Protective Services worker acting in the worker's official capacity; and

b)      a person who is acting in the capacity of a first responder, an ambulance attendant or an emergency medical technician in an emergency response situation.

 
 

36.  Classifies these offenses as class 1 misdemeanors and subjects offenders to fines of at least $1,000, except that a violation that involves 10 or more illegal aliens is a class 6 felony with a fine of at least $1,000 for each alien who is involved.

 
 

Investigations of Employers

 
 

37.   Specifies that it is an affirmative defense to knowingly or intentionally employing an unauthorized alien that the employer was entrapped.

 
 

38.  Requires the employer to admit by the employer's testimony or other evidence the substantial elements of the violation in order to claim entrapment.

 
 

39.  Stipulates that an employer who asserts an entrapment defense has the burden of proving the following by a preponderance of the evidence:

a)      the idea of committing the violation started with law enforcement officers or their agents rather than with the employer;

b)      the officers or their agents urged and induced the employer to commit the violation; and

c)      the employer was not predisposed to commit the violation before the officers or their agents urged and induced the employer to commit the violation.

 
 

40.  Stipulates that an employer does not establish entrapment if the employer was predisposed to knowingly or intentionally employ an unauthorized alien and law enforcement officers or their agents merely provided the employer with an opportunity to do so.

 
 

41.  States that it is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identities.

 
 

42.  Allows the conduct of officers and their agents to be considered in determining if an employer has proven entrapment.

 
 

43.  Directs employers to keep verification records of their employees' work eligibility through E-Verify for the duration of the employee's employment or three years, whichever is longer.

 
 

Miscellaneous

 
 

44.  Permits a peace officer, in the enforcement of Arizona's human smuggling law, to lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law.

 
 

45.  Establishes the GIITEM Fund, consisting of the following:

a)      civil penalties from entities that adopt or implement policies that limit immigration enforcement and

b)      monies appropriated by the Legislature.

 
 

46.  Requires DPS to administer the GIITEM Fund.

 
 

47.  Specifies that monies in the GIITEM Fund are subject to legislative appropriation for gang and immigration enforcement and for county jail reimbursement costs relating to immigration.

 
 

48.  Stipulates that the terms of the act regarding immigration have the meanings given to them under federal immigration law.

 
 

49.  Requires the act to be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of U.S. citizens.

 
 

50.  Contains intent and severability clauses.

 
 

51.  Titles the legislation the Support Our Law Enforcement and Safe Neighborhoods Act.

 
 

52.  Makes technical and conforming changes.

 
 

53.  Becomes effective on the general effective date.